Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Regarding Trial Chamber’s decision to vacate Messrs William Samoei Ruto and Joshua Arap Sang case without prejudice to their prosecution in the future.
By Fatou Bensouda
The Trial Chamber V (A) of the International Criminal Court ( “ICC” or “Court”) decided, by a majority of its judges to vacate the charges brought against Messrs William Samoei Ruto and Joshua Arap Sang.
The Court refused to acquit the accused because of the special circumstances of this case. In doing so, it agreed with the Prosecution’s case and agreed that this matter had been seriously compromised by tampering with witnesses and politicisation of the judicial process. It is also clear from this decision that the Prosecution could have other evidence “if it had been able to conduct its proceedings in a different climate, less hostile to his action, witnesses and the Court in general”.
The House has made â€‹â€‹it clear that this decision was made without prejudice to the presumption of innocence or the possibility of the Prosecution to initiate future prosecution on the same charges, or any other way, if new elements evidence was discovered.
We regret that due to a deliberate and concerted action in order to derail the case through pressure exerted on witnesses, judges were not able to determine the guilt or innocence of the accused on bottom of this file. It is also disturbing to note that at present, due to blows brought to this case, the victims of election violence of 2007 and 2008 will be deprived of the justice they deserve.
Now we carefully examine the decision of the Trial Chamber to decide what action we will take.
The fact is that the proceedings before the ICC are based entirely on the willingness of witnesses to come forward and deliver their stories in court. In this case, 17 witnesses who were initially willing to file against the accused later decided to cease all cooperation with the Court. The witnesses in this case were subject to intimidation, social isolation and threats intended to deter them from testifying. Ultimately, the Trial Chamber was deprived of the opportunity to truly appreciate the merits of the prosecution case.
The course of the OTP has been tumultuous since the start of its investigation in March 2010 on the post-election violence in 2007 and 2008 in Kenya. We have never deviated from our only goal was to make independent and impartial justice the many victims of the violence. The outbreak of violence that rocked Kenya after the December 2007 elections has shocked everyone.
The inhabitants took up arms against their neighbors. Kenyans turned against their fellow citizens. Men, women and children were burned alive, raped or killed with machetes. More than a thousand Kenyans have been killed, thousands more were injured and more than two hundred thousand people have fled their homes.
In accordance with our mandate under the Rome Statute, we have decided to open an investigation into post-election violence after having ascertained that the victims of these atrocities would no longer have the possibility of obtaining justice in Kenya and that their calls in order to try those responsible had been ignored.
In accordance with its principles, the Bureau acted quickly, from February 2008 to November 2009, to encourage the Kenyan authorities to fulfill the obligation imposed by the Rome Statute to initiate investigations and prosecution people who had orchestrated and exacerbated the violence in 2007 and 2008.
Although the Kenyan authorities have agreed to establish a special tribunal at the latest in November 2009, that promise has never materialised. Kenyans from all walks of solicitations to ICC intervention purposes were then intensified.
The ICC intervened when it was clear that no special tribunal would be created. Despite the amendments to the new Kenyan Constitution of 2010, the Kenyan Government seemed unable to bring to justice members of the political elite who had made use of violence for political purposes.
My mission is well defined by the Rome Statute of the ICC: it is to combat impunity for the most serious crimes of international concern by conducting investigations and prosecutions against the perpetrators, so professional and fair, without fear or favour.
My Office makes every effort to ensure that the perpetrators of crimes within the jurisdiction of the Court will be brought to justice. As Prosecutor, I personally ensure that the members of this Office show irreproachable in terms of integrity, professionalism and efficiency in the performance of their duties.
Under the Rome Statute, my office is required to exercise its powers to establish the truth. In this case, we have attempted to identify, obtain and then present judges with evidence that could help them determine if the accused were responsible for the violence that hit Kenyans in the Rift Valley after the elections 2007.
However, despite our determination to get to the truth and to advance justice in Kenya, the carefully orchestrated maneuvers of exerting pressure on many witnesses and to politicise the extreme mandate and the judicial work of the Court, have seriously undermined this case.
A campaign was conducted tirelessly to identify those likely to testify for the prosecution in this case and discourage them from doing so. These intimidation began before the beginning of our investigation in Kenya have intensified in the weeks leading up to the trial and continued for the duration.
They have led some potential witnesses to explain that they were too afraid to file to load. Others, who had made â€‹â€‹us an account of events they had seen during the post-election period, have decided to return to their testimony and ceased all cooperation with the Court.
Moreover, when public religious gatherings, local politicians and community leaders have treated the prosecution witnesses liars who had delivered false testimony. On social networks, anonymous bloggers engaged in a wave of speculation about the identity of protected witnesses, frequently accompanied by vitriolic comments on the reasons that pushed them to cooperate with the Court.
This is the harsh reality that witnesses, and sometimes family members have to endure in this case. It should honuor the witnesses for the crucial role they fulfill in the determination of the truth by the judges and for their courage. No witnesses deserves to suffer such a fate.
Within the limits of our mandate and our resources, we have tried to counter these maneuvers reached with the administration of justice by investigating these intimidation or corruption, by collecting evidence on these actions and informing the House of the situation.
We got judges that additional measures are taken to protect witnesses. As a result of our investigations, we also obtained the issuing of arrest warrants against Messrs Walter Barasa Osapiri Paul Gicheru and Phillip Kipkoech Bett, for obstructing the proper course of justice.
As highlighted in the decision, the defendants, Messrs Ruto and Sang, have taken advantage of this interference with the administration of justice.
None of the three suspects indicted by the court for obstruction of justice in this case has been delivered by the Kenyan Government.
I call on the Kenyan authorities to fulfill their obligations under the Rome Statute and to deliver without delay the three persons to the Court, so that their guilt or innocence in the charges they are accused can be established independently and impartially in the context of a trial.
Given the subornation of perjury and hostile climate discussed in the decision, the Government of Kenya should especially honour its obligations and hand over the suspects in question in the custody of the Court.
We sought to use innovative legal measures to preserve the evidence we had collected. When key witnesses changed their stories, we convinced the Trial Chamber to make them appear before it so that it can check the validity of their statements. When we have enough evidence to establish that witnesses had recanted because of the bribery, we asked the judges to make their initial testimonies amended application dossier of Rule 68 of the Rules of Procedure and evidence of the Court.
However, 12 February 2016, the Appeals Chamber decided to cancel the decision of the Trial Chamber to tender the first evidence to charge witnesses who had been bribed. Note that the Appeals Chamber found that the amended version of Rule 68 could not be applied retroactively to admit the initial statements of the witnesses who had recanted, but she did not return the conclusion Trial Chamber that the witnesses in this case were singled out bribery maneuvers.
It should be emphasised that, despite the misinformation conveyed by social networks and traditional media and misunderstanding that has resulted, it was never intended to attack a country or a community particular country. Similarly, we must never forget the hundreds of Kenyan victims who were involved in this case.
This is not the collective responsibility of Kalenjin, Kikuyu, the Kisii, Luo, Maasai or the Kenyan people that were involved.
This was to try individuals for crimes alleged against them as individuals and whose guilt or innocence should be established within the framework of a fair and impartial trial.
Normally, the Government of Kenya was an ally and a major partner of the Bureau, since this case involved crimes committed against Kenyans, defined crimes and prohibited by a treaty ratified by the Kenyan Government. As a state party to the Rome Statute, it held from an international perspective and constitutional assist the Office in its investigations.
However, despite repeated assurances of cooperation with the Court, the Kenyan Government has provided a selective assistance to the Prosecutor. That is why my Office has not had full access to documents and records that may constitute evidence or allow to truth-telling.
Finally, the obstacles we encountered in our investigation and our lawsuits have perverted the course of justice for the victims in this case and that is deeply regrettable.
We learn from our failures. This Office is committed to review, adapt and improve its working methods. Indeed, since I took up my post of Attorney in 2012, we have implemented a series of new measures to strengthen the effectiveness of our action based on lessons from the past. Our latest strategic plans are only an illustration of the practical measures that are already successful.
I take this opportunity to thank all those who supported the work of the Office in Kenya and, foremost, the victims themselves. I thank the witnesses in this case, who are courageously came to testify to the immense sacrifice. I want to thank certain categories of Kenyans in particular – including farmers, doctors, journalists and humanitarian workers – who, early on, could have refused to testify, but who nevertheless gave us a crucial insight that it happened during the tumultuous post-election period.
In fact, I want to thank all those who, in Kenya or elsewhere, bravely and tirelessly facilitated and supported our action in this country because of their beliefs and their commitment to justice.
Finally, I wish to thank the States Parties to the Rome Statute that have cooperated with the Office in connection with this case and who have remained faithful to the principles enshrined in this treaty.
In this case, I was deeply moved by the extraordinary courage, conviction, creativity and perseverance as Kenyans we rubbed shoulders and so I received a truly humbling experience.
The ruling sends a strong message: subornation of perjury and obstruction of justice will not be tolerated at the ICC. Time is on the side of justice.
Despite the obstacles encountered by my Office in this case, we are determined to pursue our action in favor of international criminal justice.